England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LUTON COUNTY COURT
(His Honour Judge Farnworth)

		Royal Courts of Justice Strand London WC2 Wednesday, 20th February 2002

1. LORD JUSTICE WARD:This is an application by Mr Y for permission to appeal against the order made by His Honour Judge Farnworth in the Luton County Court on 19th November 2001, when he dealt with contact.
2. I am told that there have been 18 appearances before the courts in the life of this six-year-old child. I think Mr Y agrees that that is a very sad fact to recite, but he would say that it is only half of his responsibility, if not less than that. It does not matter.
3. The judge made an order expressed to be "in variation of and in substitution of all previous Orders". Mr Y is concerned that that has done away with orders unrelated to contact - most importantly, of course, the order granting him parental responsibility and the order dealing with the name under which the child should be known. I do not read the preamble to the order in that way. I do not believe that the judge intended that, nor that anybody would so read it. If there is any doubt about that, they now have my opinion in this judgment; and I hope nobody in their right mind would seek to suggest that this father has been deprived of his parental responsibility by reason of that preamble.
4. Mr Y complains that this hearing was extremely rushed; that the judge, for example, did not give him an opportunity to offer himself for live evidence and cross-examination, though the mother gave evidence. He complains that the judge was under pressure of time, having other matters in his list that day, and that he, in effect, came out with a compromise which he simply handed down. The argument is not without force, because the judgment of the judge is, to say the least of it, perfunctory. He seems to have determined the contact arrangements and then, in his judgment, explained what he was doing.
5. The father believes that the judge did not sufficiently address the checklist. I cannot accept that submission, because it is clear that this is an experienced judge, as the skeleton argument acknowledges. There are references in the first paragraph of the judgment to meeting the child's needs and the need to promote a relationship with the father, and there are references to injecting some stability and structure in the future. There is no hope of appealing that.
6. The father complains that the judge did not refer to the court welfare officer's report. It was a report which was some years out of date. No current report had been requested. I can see no criticism in that whatever. In any event, it is a double-edged sword for the father. He complains that the judge did not entertain an application (not made by proper notice, but contained in his witness statement) in which he sought shared residence. If one looks at the court welfare officer's report, she explained why shared residence was inappropriate. In my judgment, this is not an appropriate case for shared residence. It is an appropriate case for generous, good, consistent contact, and the father should be having that; and, with his parental responsibility order, that gives him the right focus in the child's life.
7. What troubles me about this case is that the father's concerns that the order was rushed, ill thought out and insufficiently discussed with the parties has, on the face of it, some support. In a case where the father brought the application hoping that it would regulate matters for the future, he fears (and I think with some justification) that the order is the recipe for future disaster. The judge's order is that the father is to have contact during the full school holidays. The main problem will arise at Christmas time. Paragraph (a) provides that in the Christmas holiday he is to have contact from 10.00am on 24th December to 10.00am on 26th December in alternative years, commencing 2001; and he is to have contact in the other year from 10.00am on 26th December to 6.00pm on 27th December. Now for the difficult part: the judge also ordered that in each year, for the last week of the holiday, he was to have contact to 6.00pm on the day before the start of the new school term.
8. Two problems loom. The first is that in paragraph (vi) of the order the judge said that all periods of weekly contact were to commence at 10.00am on Saturday and end at 10.00am on the following Saturday. He added that at the insistence of counsel for the mother in the course of the discussion that followed his judgment. The father fears that paragraph (vi) will be used in order to impose a different timetable upon paragraph (a) dealing with the week of Christmas, which the judge clearly envisaged would end at 6.00pm on the day before the start of the new term and which would therefore begin seven days before that. I would have thought, upon a proper construction of the order, that the specific provision for the end week of the Christmas holiday prevails over the general provision of clause (vi).
9. Problem number two - and this is one the mother will not like - is that it is more than likely that many, if not most, of the last weeks of the Christmas school holiday will include 29th December, which is the child's birthday. If the father is to have the boy with him during that week and there is no provision for the mother to have contact, the provision in paragraph (iv) that on the boy's birthday father is to have contact for a period of two hours to hand over presents and cards is ineffective if the staying period of contact runs. That seems to me to be the effect of the order as it is drawn at the moment. I am surprised I do not have an application from the mother for permission to appeal, because she is hardly likely to agree willingly to that regime.
10. The order is silent about half-term holidays. The father says that the judge has not dealt with it. He has given no reason for not acceding to that part of the application and, there being no reasons, he should have his right to appeal. That is an argument that I will leave over for another day.
11. He complains that the contact starts half an hour late, at 4.30pm as opposed to 4.00pm, and he points to the unreality of a situation where he is apparently working in the school on Wednesdays and Fridays and yet he has to put the boy on the coach that will take him to his mother's home and he then has to wait about until 4.30pm, when more sensibly, says father, he could take the boy off on contact straight from school.
12. It seems to me, therefore, that there are serious prospects for disagreement and there are four ways to resolve it. The first is to give permission to appeal and see if the full Court of Appeal will tinker. That seems to me, at the moment - I emphasise at the moment - the least favoured option. The second is to dismiss this application and let the parties stew in their own juice and take the matter back to the judge. That, at the moment, does not seem entirely sensible. The third option is to hope - for hope springs eternal, even with parents like this - that perhaps they might each recognise that this order is unsatisfactory to them and that they might begin to do a little horse trading here and there; that the Christmas week, and more particularly the boy's birthday, will be clarified and agreed in a way which is satisfactory, possibly by giving the mother the opportunity to share the boy's birthday in the way the judge reflected in his judgment. Possibly some give-and-take about the half-term holidays; possibly some give-and-take, if father really is working at the school on a Wednesday afternoon, and can take the boy straight off for contact from school. It may be that on the weekend it is better he should go home, so that he can leave his things at home and then go off for contact, but the argument on Wednesday afternoon appears at least to be a stronger one. The fourth option is to adjourn the matter to a hearing on notice to the mother.
13. There has to be give-and-take in this case, if the parties are sensible. I will see if they can be sensible. I will suggest that this court's mediation service endeavour to assist these parties come to some satisfactory working relationship that does provide the framework for the future in an intelligible way. I say to both of them (for I shall direct that a transcript of this judgment be prepared at public expense for both parents and for the mediator) that the crucial message, in my judgment, is give-and-take and compromise. If they have not yet been told in one of their 18 appearances before the courts, I will tell them now, that they are apparently good, devoted, concerned parents of a boy with special needs - a boy who needs extra careful handling by each of them. He will want them to show respect to each other; and it is about time that the father stopped feeling hard done by that shared residence does not give him a full place in the boy's life, while the mother feels that court orders are interference by the father with her freedom to look after the boy as she would wish. If they put their son before themselves, they might begin to make a little more progress.
14. I will therefore assist by arranging mediation, if the parties are sensible enough to take it up. If they are not and the mediation breaks down, then the father is at liberty to restore this matter to me, sitting as a single lord justice, on notice to the mother, so that she will appear before me and I will then give renewed consideration to whether or not I adopt option one that I mentioned and allow permission to appeal and let the Court of Appeal deal with it; or option two, which is to dismiss the application and send them packing back to the judge and let him sort out his own difficulties; or option three, which is to use the opportunity, as a single lord justice, to bang a few heads together, kick a few backsides, and endeavour to get a little sense into this most unfortunate, exaggerated dispute, which could be resolved for the last time with give-and-take.
15. I am sorry that the father had a wasted day in court because the mother did not appear. But sympathetic as I am to that, an order that there be no order for costs is the usual order in children's matters. The likelihood of getting the costs paid personally by the mother, who has the benefit of civil legal aid, is utterly remote. The prospects of getting them from the solicitors, as a wasted costs order, is even more remote. This is hard cheese; tough luck; swings and roundabouts; life's horrid misfortunes; the kind of thing that happens when you are a parent and you have unexpected expenses to meet. Sorry as I am for the father, I will not give permission to appeal against the judge's costs order.
16. So the matter will be adjourned, to be restored on notice to the other side if the conciliation process breaks down. If it does not, then I would suggest that the easiest, cheapest, best way of dealing with it is for an agreed order to be written out and signed by the parties and it can operate by consent or under paragraph (v) of the judges order, which permitted such further or varied contact as may be agreed in writing between the parties. In that event, the appeal can be dismissed.
Order: matter adjourned, to be restored on notice to the other side if conciliation process breaks down; transcript of this judgment to be provided to the parties and the mediation service at public expense.